STATE OF NEW JERSEY v. JOSHUA MCMILLIAN (16-10-1572, 19-04-0622 AND 19-04-0623, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3899-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA MCMILLIAN,
a/k/a BUDAH, and FNU LNU,
Defendant-Appellant.
__________________________
Submitted May 17, 2022 – Decided July 19, 2022
Before Judges Fisher and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 16-10-
1572, 19-04-0622 and 19-04-0623.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from the trial court's November 4, 2019 order denying
his motion to suppress. The trial judge found police officers had probable cause
to search the trunk of defendant's vehicle after smelling raw marijuana and
finding a small amount of marijuana shake while searching the interior of the
car.1 Because the officers did not completely search the interior of defendant's
car before proceeding to open the locked trunk and the officer did not testify
that the shake found in the car could not be the source of the smell of marijuana,
we reverse.2
Defendant was charged in an indictment with: fourth-degree obstructing
administration of law, N.J.S.A. 2C:29-1(a); two counts of third-degree
possession of a Controlled Dangerous Substance (CDS), N.J.S.A. 2C:35-
10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and 2C:35-5(b)(3); two counts of fourth-degree possession of
drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3; second-degree
1
During the suppression hearing, the testifying officer explained that "[s]hake
is small pieces of marijuana, that basically come off of the original piece, and
when you are attempting to either roll marijuana cigarettes or package it, it's not
always all going to go in the bag, so it scatters throughout the area."
2
Defendant also challenges his sentence. We do not address those issues in
light of our decision to reverse the suppression order.
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unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); fourth-degree
prohibited weapons and devices—large capacity ammunition magazine,
N.J.S.A. 2C:39-3(j); fourth-degree prohibited weapon and devices—hollow
nose/dum-dum bullets, N.J.S.A. 2C:39-3(f)(1); and second-degree possession of
a firearm while engaged in CDS distribution activity, N.J.S.A. 2C:39-4.1(a). He
was charged in a subsequent indictment with two second-degree certain persons
not to have weapon, N.J.S.A. 2C:39-7(b)(1). In addition, defendant had pending
charges from Ocean County.
Defendant moved to suppress the evidence found during a search of the
trunk of a vehicle he was driving following a traffic stop. We derive the
following facts from the testimony presented at the suppression hearing and a
review of the body camera footage.
While on patrol, Edison police officer Joseph DePasquale observed a car
that was crossing slightly over the lane into oncoming traffic and then moving
back into its own lane. DePasquale and his partner, Steven Nappe, followed the
car into a parking lot and then conducted a motor vehicle stop. The interaction
was recorded on the officers' body cameras.
DePasquale approached the driver's side of the car and requested the
driver's license––the driver of the vehicle was identified as defendant. Nappe
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went to the passenger's side. Defendant told police he was not the owner of the
vehicle and gave the registered owner's name. DePasquale stated he observed
"small pieces of marijuana shake scattered throughout the back seat of the
vehicle" and "rolling papers underneath the driver's seat." He also detected the
odor of raw marijuana coming out of the car.
As DePasquale returned to his patrol car to check defendant's credentials,
two other officers arrived––Parenty and Paone. Before returning to defendant's
car, DePasquale turned his microphone off and spoke with another officer.
When asked about the reason for muting his microphone on his body camera,
DePasquale stated that he did so to explain
to the other officers who arrived on-scene what [he]
was going to do next, because at that point [he] had
already detected the odor of marijuana and [he] did a
look-up of the information, . . . and based off of that,
[he] knew [he] was going to search the vehicle.
DePasquale asked defendant to get out of the vehicle and then searched
him. Defendant told the officer that he had smoked marijuana an hour earlier at
a friend's house and he was wearing the same clothes. DePasquale replied, "I
can smell it coming off your clothes" and "because of that I'm gonna search you
a little better and then I'm gonna search the car." While searching defendant,
DePasquale found rolling papers on his person.
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After searching defendant, DePasquale and Parenty searched the vehicle.
After entering the passenger's front side of the vehicle to begin the search,
Parenty stated, "It smells in here too." DePasquale and Parenty then muted their
microphones.
DePasquale searched the front and back of the car on the driver's side,
while Parenty searched the front passenger side. However, Parenty never
searched the back seat on the passenger's side or even opened the back passenger
side door. After DePasquale pushed up the rear seat arm rest, his camera showed
very small pieces of marijuana "shake" in the back seat. A box of rolling papers
is also seen in the center console.
DePasquale testified that, "throughout the search of the vehicle, as [he]
went towards the rear of the vehicle, once [he] folded down the armrest, that's
when [he] was able to detect the odor of marijuana to be at its strongest point
throughout the entire stop."
DePasquale then described his subsequent actions:
[THE STATE:] . . . At this point has your search of the
interior of the vehicle concluded?
[DEPASQUALE:] For the front compartments, yes.
[THE STATE:] And after you finished searching that
portion of the car, what did you do?
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[DEPASQUALE:] After that, I got back out of the
vehicle and I approached the defendant and notified
him that I would need his car key to search the
remainder of the vehicle.
[THE STATE:] And what was [defendant]'s reaction
when you asked for his keys to search his trunk?
[DEPASQUALE:] [Defendant] was cooperative and he
provided me with the keys. It wasn't until I had started
walking towards the trunk of the vehicle when he
became irate . . . .
DePasquale's and Parenty's microphones were muted while Parenty
retrieved the car keys from defendant. Nappe's microphone was on. When
Parenty asked defendant if he had the keys, defendant handed them to the officer.
However, as DePasquale walked to the back of the vehicle to open the trunk,
defendant became visibly and audibly upset. Nappe's microphone remained on
for the following exchange before defendant was placed in the patrol vehicle.
Defendant said, "Hold on, hold on . . . . why are you going in the trunk
for? . . . . You have to ask for probable cause." Parenty responded, "The odor
of marijuana" was the probable cause. DePasquale stated, "We have stuff that
shows you used marijuana in the car." Defendant remained agitated, stating the
officers did not find anything in the car and, therefore, they could not go into
the trunk. After two minutes of defendant objecting to the officers' entry into
the locked trunk, they placed him in the back of a patrol car.
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After opening the trunk and lifting the liner, the officers found a
"sandwich bag containing marijuana, one grinder, one tied off bag containing
cocaine, . . . . three bricks of heroin broken down into five bundles each, and an
additional four bundles of heroin totaling 190 bags," a cutting agent for cocaine
and heroin, and a "Smith and Wesson [forty] caliber handgun with an extended
magazine which was loaded with [twenty] hollow point bullets." The officers
then arrested defendant.
During the suppression hearing, DePasquale stated that not all marijuana
smells the same, explaining that in some instances he would "step out of [his]
vehicle and . . . already . . . smell the odor of marijuana," but the search of the
car might only reveal five grams of marijuana. Whereas in other instances, there
would only be a "faint odor" of marijuana even though a subsequent search of
the car resulted in the discovery of 150 grams of marijuana. He said that the
smell "depends on how [the marijuana] is packaged, how long it's been sitting
in that area." "If it's vacuum sealed, it's going to be a little bit harder to sm[e]ll.
I[f] it's in a sandwich bag and it's been sitting in that area, it's had time to . . .
make that whole area smell like the marijuana." He also said the quality of the
marijuana can affect the strength of its smell.
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In its November 4, 2019 order, the trial court found the police lawfully
stopped defendant's car after observing a motor vehicle violation. The court
stated further:
And finding Patrolman DePasquale to be credible based
on his testimony given at the hearing . . . that the smell
of marijuana emanated from the vehicle and during the
course of the vehicle search he found marijuana shake
in the backseat armrest, and his testimony that this
amount of marijuana could not be the source of the
smell, could reasonably lead his search to the trunk of
the vehicle to locate the source of the marijuana smell.
(emphasis added)
The court denied the suppression motion.
Defendant subsequently pleaded guilty to third-degree possession of a
CDS with intent to distribute and second-degree possession of a firearm while
engaged in CDS distribution activity. He also pleaded guilty to the certain
persons offense. The guilty pleas resulted in a probation violation of a prior
2016 conviction.
Defendant was sentenced on the violation of probation to three years
imprisonment with no parole ineligibility, to run concurrent to the sentence of
five years imprisonment with two and a half years of parole ineligibility for
possession with intent to distribute and concurrent to five years of imprisonment
with a five year period of parole ineligibility on the certain persons offense and
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consecutive to seven years of imprisonment with a three and a half year period
of ineligibility for possessing a firearm during a CDS distribution. These
sentences all were consecutive to a five-year term of imprisonment with a forty-
two-month period of parole ineligibility for the unrelated Ocean County
convictions.
Defendant presents the following points for our consideration:
POINT I
AFTER HAVING FOUND A SMALL AMOUNT OF
MARIJUANA IN THE PASSENGER
COMPARTMENT POLICE
UNCONSTITUTIONALLY EXTENDED THE
WARRANTLESS SEARCH TO THE TRUNK.
POINT II
THE MATTER MUST BE REMANDED FOR
RESENTENCING.
A. The Sentencing Court Failed to Articulate Its
Reasons For Finding Aggravating Factors Three and
Nine[.]
B. The Court Sentenced [Defendant] Consecutively to
the Governing Sentence in Ocean County Without
Considering the Overall Fairness of the Aggregate
Sentence, Pursuant to State v. Torres.
Our scope of review of the grant or denial of a motion to suppress is
limited. State v. Robinson, 200 N.J. 1, 15 (2009). We will "uphold the factual
findings underlying the trial court's decision so long as those findings are
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supported by sufficient credible evidence in the record." State v. Carrion, 249
N.J. 253, 279 (2021) (citation omitted). We defer to those factual findings
because of the trial court's "opportunity to hear and see the witnesses and to have
the 'feel' of the case, which a reviewing court cannot enjoy.'" State v. Elders,
192 N.J. 224, 244 (2007) (citing State v. Johnson, 42 N.J. 146, 161 (1964)).
We also "defer to [the] trial court['s] credibility findings that are often
influenced by matters such as observations of the character and demeanor of
witnesses and common human experience that are not transmitted by the
record." State v. Mordente, 444 N.J. Super. 393, 397 (App. Div. 2016) (quoting
State v. Locurto, 157 N.J. 463, 474 (1999)).
Therefore, the "trial court's findings should be disturbed only if they are
so clearly mistaken that the interests of justice demand intervention and
correction." State v. Nelson, 237 N.J. 540, 551-52 (2019) (quoting Robinson,
200 N.J. at 15). However, our review of a trial court's conclusions of law is de
novo. State v. Diaz, 470 N.J. Super. 495, 513 (App. Div. 2022).
"Both the United States Constitution and the New Jersey Constitution
guarantee an individual's right to be secure against unreasonable searches and
seizures." State v. Minitee, 210 N.J. 303, 318 (2012). Thus, searches and
seizures conducted without a warrant "are presumptively invalid as contrary to
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the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J.
13, 19 (2004) (citing State v. Patino, 83 N.J. 1, 7 (1980)). The State has the
burden to prove by a preponderance of the evidence "that the search falls within
one of the few well-delineated exceptions to the warrant requirement." Id. at 19(citations omitted).
In State v. Witt, 223 N.J. 409 (2015), our Supreme Court stated that police
officers may conduct a warrantless, nonconsensual search during a lawful
roadside stop in situations where: (1) the police have probable cause to believe
the vehicle contains evidence of a criminal offense; and (2) "the circumstances
giving rise to probable cause are unforeseeable and spontaneous."
Prior to the legalization of marijuana in New Jersey, 3 in certain
circumstances, our courts have "recognized that the smell of marijuana itself
constitutes probable cause that a criminal offense ha[s] been committed and that
additional contraband might be present." State v. Walker, 213 N.J. 281, 290
(2013) (internal quotation marks omitted) (quoting State v. Nishina, 175 N.J.
3
The New Jersey Cannabis Regulatory, Enforcement Assistance, and
Marketplace Modernization Act, N.J.S.A. 24:6I-31 to -56 (the Act), became
effective on February 22, 2021. Under the Act, an odor of marijuana cannot
create a reasonable suspicion or probable cause to conduct a warrantless search.
N.J.S.A. 2C:35-10c(a). In a recent decision, this court held that the Act is to be
applied prospectively. State v. Gomes, ___ N.J. Super. ___, ___ (App. Div.
2022) (slip op. at 27).
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502, 515-16 (2003)); State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v.
Mandel, 455 N.J. Super. 109, 114-15 (App. Div. 2018); State v. Myers, 442 N.J.
Super. 287, 304 (App. Div. 2015). When the persistent smell of unburned or
raw marijuana is detected, probable cause has been found to support even a
warrantless search of a vehicle's trunk when an officer is unable to "pinpoint the
source" of that odor. State v. Kahlon, 172 N.J. Super. 331, 338 (App. Div.
1980); see State v. Guerra, 93 N.J. 146, 149-50 (1983) (finding probable cause
to justify the search of a vehicle's trunk when the officer searching the vehicle
concluded the "strong odor of marijuana" could not have been emanating from
a small suitcase within the "car's interior").
However, even if an officer has "probable cause to believe that the vehicle
is carrying contraband[,] . . . the search must be reasonable in scope." Patino,
83 N.J. at 10. Although a search may first be "validly initiated, [it] may become
unreasonable because of its intolerable intensity and scope." Id. at 10-11 (citing
Terry v. Ohio, 392 U.S. 1, 18-19 (1968)). "The scope of a warrantless search of
an automobile is defined by the object of the search and the places where there
is probable cause to believe that it may be found." State v. Esteves, 93 N.J. 498,
508 (1983) (citations omitted).
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In Patino, after finding a container "six inches long and an inch in
diameter" that was "half-full of green vegetation" and "a hand-rolled marijuana
cigarette" and searching the remainder of the passenger compartment, the officer
searched the trunk and found cocaine. 83 N.J. at 5-6. The Court found the
search of the trunk unconstitutional, holding that "[a] small amount of marijuana
. . . alone without other circumstances that suggest participation in drug traffic
or possession of more contraband" does not allow an officer to extend his search
to the trunk. Id. at 14-15. The facts did not reflect the officer smelled marijuana
inside the car.
This court did consider the implications of an officer smelling marijuana
in a vehicle in Kahlon. After pulling a vehicle over for traveling at a slower
speed than normal on a highway, the officer asked the defendant to roll down
the window. 172 N.J. Super. at 335-36. When the defendant complied, the
officer "smelled an odor he believed to be burning marijuana." Id. at 336. The
defendant admitted he had smoked marijuana. Ibid. After patting down the
occupants of the car, the officer searched the vehicle "to determine the area from
which the odor of marijuana had emanated." Ibid.His search of the passenger compartment revealed "a half-burned
marijuana cigarette . . . approximately one inch long " and, "from his training[,]
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[he] thought the [cigarette] to be unusually large." Ibid. He also found "a clear
plastic bag filled with . . . approximately 1/2 ounce of marijuana and a package
of cigarette wrapping papers." Ibid. The officer arrested the defendant and
continued his search of the passenger compartment. Id. at 336-37. He found
nothing more, but stated he smelled a "very heavy odor of unburned marijuana."
Id. at 337.
The officer then searched the trunk. There he "smelled a very heavy odor
of unburned marijuana" and found "several suitcases and a cardboard box,"
which was not "completely" closed. Ibid. In the box was a plastic bag. Ibid.The officer said he "was positive . . . the odor of unburned marijuana" was
coming from the bag. Ibid. The bag had holes in it, which the officer widened
and found marijuana. Ibid. He also found a scale underneath another bag in the
trunk. Ibid.The trial court suppressed the evidence found in the trunk. Id. at 335. We
reversed, finding that because the officer could not "pinpoint the source of the
smell," along with the marijuana found in the passenger compartment, he could
reasonably conclude the odor was coming from the trunk and, therefore, had
probable cause to search the trunk for the drugs. Id. at 338.
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Defendant does not challenge the stop of the vehicle, or the search of his
person and the passenger compartment of the car. The issue is whether the
police officers had probable cause to search the trunk of the car. After reviewing
the totality of the circumstances, we conclude they did not.
After viewing marijuana shake in the car, and smelling raw marijuana, the
officers had probable cause to search the interior of the vehicle. Which they
did. However, a review of the body camera footage reveals the officers did not
complete that search prior to undertaking the warrantless search of the trunk.
The officers never searched the back seat on the passenger side of the car.
Therefore, DePasquale did not eliminate the possibility that the odor was coming
from the passenger compartment by searching the entirety of the car. Moreover,
the trial judge mistakenly found that because DePasquale testified that the small
amount of marijuana in the back arm rest "could not be the source of the smell,"
it was reasonable for the officer to continue his search into the trunk. But
DePasquale never said he could not identify the source of the smell. He never
stated the odor was not emanating from the shake found in the car. And the
officers did not complete the interior search of the back seat. Therefore, the
officers did not have a reasonable and articulable suspicion that a crime was
being committed to satisfy a finding of probable cause to extend the search to
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the trunk. The trial judge misstated the testimony of the officer and therefore
mistakenly granted the motion to suppress.
We reverse the order denying the suppression motion and vacate the
conviction and sentence pertaining to this indictment. We remand to the trial
court for further proceedings regarding the effect this decision may have on
defendant's sentence arising out of the Ocean County conviction.
Reversed, vacated, and remanded for further proceedings. We do not
retain jurisdiction.
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